Mr Graham Golding v Busselton Water
[2012] FWA 6816
•15 AUGUST 2012
[2012] FWA 6816 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Graham Golding
v
Busselton Water
(U2012/7692)
COMMISSIONER CLOGHAN | PERTH, 15 AUGUST 2012 |
Unfair dismissal.
[1] On 2 May 2012, Mr Graham Golding (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from his employment with Busselton Water (“the Employer”).
[2] Mr Golding’s application is made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] The application was not the subject of conciliation and was referred to me for arbitration on 24 May 2012.
[4] Mr Golding’s employment was terminated with immediate effect on 13 March 2012.
[5] For the Tribunal to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 14 days after the dismissal took effect. Mr Golding’s application was not made within 14 days. However, the Tribunal can allow a further period for the application to be made (in this case to 2 May 2012) if it is satisfied that there are exceptional circumstances taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[6] On 28 May 2012, I invited the Applicant to make submissions to satisfy the Tribunal that exceptional circumstances existed to allow the application to be made on 2 May 2012. The Employer was given the opportunity to respond to those submissions. Neither party sought an oral hearing to supplement their written submissions.
APPLICANT’S SUBMISSIONS ON EXTENSION OF TIME
[7] The Applicant advances three grounds which led to the delay in filing his application seeking a remedy for alleged unfair dismissal. They are as follows.
Deterioration in health following cessation of employment
[8] In summary, Mr Golding states that he suffered “from depression characterised by a feeling of being useless and compounded by the advice of the prospect that he would not be able to find work again because of his age in particular”.
[9] Mr Golding’s daughter made observations of her father’s health when he temporarily relocated to Perth. Ms Golding’s observations are both physical and psychological.
[10] Ms Golding’s assessment includes: “he seemed like he had given up”, “he was depressed and had lost all of his confidence”, “lost weight”, “frail”, “trembling”, “seemed nervous”, “could not sleep”, “lethargic”, “negative” and, in summary, “I absolutely believe he suffered from anxiety and depression”.
Lack of Computer Skills
[11] The Applicant submits, to summarise, a “lack of any computer skills and not know how to open email correspondence”.
[12] The Applicant had given his representative an email address. His representative forwarded a draft unfair dismissal application to Mr Golding on 15 March 2012. Mr Golding did not open up the email until on or about 30 April 2012.
[13] Mr Golding asserts that even though he gave his email address to his representative, he “did not realise that he [his representative] would send the draft to me by email”.
[14] Ms Golding supports her father’s assessment of his computer skills.
Alleged Representative Error
[15] “Straight after the termination”, Mr Golding met with his local union representative, Mr Brand, and “issued instructions to him to proceed with an application for unfair dismissal”.
[16] Mr Golding asserts that he “made it plain to Mr Brand [an Organiser with the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourses, Public Authorities, Water Boards Union (LGRCEU)] that I [Mr Golding] would leave the matter in his [Mr Brand] hands”. I shall refer to Mr Brand as Mr Golding’s “local Union representative”. Soon afterwards, Mr Golding was contacted by Mr Trainer who acts on behalf of the LGRCEU. Mr Trainer took sufficient details in order to prepare a draft application to FWA.
[17] Mr Trainer, by email, provided a draft application to FWA for Mr Golding’s consideration on 15 March 2012 - two days after the Applicant’s dismissal.
[18] Mr Golding asserts that, having put the matter in “the hands” of Mr Brand, there was nothing further required of him.
[19] On or about 30 April 2012, Mr Golding had a telephone conversation with Mr Brand which led to a telephone discussion with Mr Trainer. During this telephone conversation, Mr Golding became aware of the draft application which had been sent to him by email on 15 March 2012. According to Mr Golding, he did not realise that a draft application would be sent to him by email.
[20] On 2 May 2012, Mr Golding filed an application with FWA seeking a remedy for alleged unfair dismissal.
[21] Ms Golding confirms that she was asked to open her father’s emails on or about 30 April 2012 and that Mr Trainer had forwarded the draft application to Mr Golding on 15 March 2012.
[22] Mr Trainer states that, after receiving Mr Golding’s email address, he “worked from the basis that he [Mr Golding] did view messages regularly and that he was able to access his messages”.
EMPLOYER’S SUBMISSION ON EXTENSION OF TIME
[23] The Employer proceeds firstly by stating that the application was lodged 50 days after termination of employment.
[24] With respect to the three grounds which led to the delay in filing the application, the Employer asserts under the same headings as follows:
Deterioration in health following cessation of employment
[25] The Employer asserts that:
● the Applicant has declined to provide any reliable medical evidence to substantiate his assertion that his health deteriorated and he suffered depression following termination of employment. Further, Ms Golding has provided no medical expertise upon which to base her claims as to her father’s state of health;
● notwithstanding Mr Golding’s claims regarding his deterioration in health, he:
- tried to find a another job by word of mouth;
- completed job applications;
- made general employment enquiries;
- had discussions with Centrelink;
- assisted Ms Nicole Golding in her furniture store; and
- managed to secure a new job and negotiate the terms and conditions of that new job.
Lack of computer skills
[26] The Employer acknowledges that while the Applicant had an email address during his employment with the Employer, he was not required to use his email account on a regular or day to day basis. However, the Employer asserts that Mr Golding “did occasionally access his emails and even composed and sent emails to work colleagues”; in this respect, the Employer attaches such an example as part of its submission.
[27] Further and finally, the Employer contends it would be illogical for a person to provide their email address to Mr Trainer “without contemplating that it might be used”.
Alleged Representative Error
[28] The Employer submits that, “placing the matter in the hands” of a representative does not excuse Mr Golding of involving himself in the processing of the application.
[29] Further and importantly, shortly after placing the matter in the hands of Mr Brand, Mr Golding was contacted by Mr Trainer who sought the necessary details to prepare an application to file with FWA. Further, even if Mr Brand gave assurances that he would progress the matter shortly after that assurance, Mr Golding was contacted by Mr Trainer; it was unreasonable for the Applicant to assume, and continue to rely upon, Mr Brand’s assurances.
[30] CONSIDERATION
[31] Both the Applicant and the Employer cited various authorities in support of their contentions.
[32] Shortly put, the Applicant submits that the circumstances demonstrate an acceptable reason for the delay. The Employer, in the alternative, submits that circumstances do not demonstrate exceptional circumstances to allow an extension of time to file the application beyond the standard 14 days.
[33] The issue before me in this application is simply whether exceptional circumstances existed between 13 March and 2 May 2012 for the Tribunal to exercise its discretion to extend the time for Mr Golding to file his unfair dismissal application.
[34] The burden lies with Mr Golding to make out his case that exceptional circumstances existed.
[35] Mr Golding, in his submissions, submits three grounds for the delay in filing the application. I intend to deal with alleged representative error and lack of computer skills together.
● Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?
Representative error and lack of computer skills
[36] On 1 March 2012, Mr Golding attended a meeting with his Employer. At the meeting, Mr Golding’s local Union representative, Mr Brand, was in attendance. While there are differences between the parties as to what occurred at the meeting, it is not in dispute that following a short adjournment, Mr Golding was dismissed. Mr Golding received correspondence on the same day confirming his termination of employment with immediate effect.
[37] Mr Brand must have taken swift action to pursue Mr Golding’s application for unfair dismissal because, shortly afterwards, Mr Trainer, who acts for the LGRCEU, contacted Mr Golding. Mr Trainer took the necessary details, and having received Mr Golding’s email address, forwarded to him a draft application two days later on 15 March 2012.
[38] Mr Golding states, “Even though I had given Mr Trainer my email address, I did not know how to open emails or to use them. He [Mr Trainer] was not aware of this”.
[39] Only on 30 April 2012, following a conversation with Mr Brand, did Mr Golding get his daughter to open the email and find the draft application of 15 March 2012.
[40] I have a statement from Mr Trainer which states that Mr Brand was aware of the statutory time limit for filing an unfair dismissal application. Mr Trainer, an experienced and diligent industrial relations advisor, is aware of the timeline for lodging such an application. Both Mr Brand and Mr Trainer acted swiftly. There can be no criticism of both gentlemen. The only person who did not act expeditiously was Mr Golding.
[41] Mr Golding’s response is to claim that he put the entire matter in the “hands” of Mr Brand. However, the delay in filing the application cannot be ascribed to Mr Brand - the delay in not opening, or not having another person, open his email, can only be down to Mr Golding. Further, there is force to the Employer’s contention that once Mr Trainer contacted Mr Golding, Mr Brand’s role and assurances ceased. Further, the Employer has speculated on the likelihood that either, or both, Mr Brand and Mr Trainer, mentioned the statutory timeline for filing the application to Mr Golding.
[42] It is not necessary for the Tribunal to speculate on whether or not Mr Brand or Mr Trainer mentioned the statutory timeline for filing unfair dismissal applications to Mr Golding, the inescapable fact is that Mr Golding did not open his email inbox.
[43] In an appeal pursuant to the Workplace Relations Act 1996, a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency [Q0784] endorsed the principles adopted by Commissioner Gay in the decision at first instance, relating to representative error. The principles adopted by Commissioner Gay are contained in Clark v Ringwood Hospital [P5279] and are as follows:
● “depending on the circumstances, representative error may be a sufficient reason to extend time;
● “a distinction should be drawn between delay that can be properly apportioned to the applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant;
● “the conduct of the application is a central consideration in deciding whether representative error has occurred...For example, it would not be unfair to refuse to accept an application which is some months out of time where the applicant left the matter in the hands of their representative and took no steps to enquire as to the status of their claim. A different situation exists...the representative fails to carry out those instructions...despite the applicant’s efforts to ensure that the claim is lodged; and
● “error by the applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”
[44] In coming to a conclusion on this reason for the delay, I have also asked a question; could Mr Golding have applied reasonable practical solutions to his unfamiliarity with computers? The answer must be in the affirmative. Soon after receiving a telephone call from Mr Trainer, Mr Golding telephoned his daughter to open his email inbox to discover the draft application. This practical solution could have been applied in the immediate days following his discussions with Mr Trainer. With this in mind, I agree with the Employer that it would be illogical for a person to be asked for, and supply, their email address, and not to expect an email from Mr Trainer.
[45] In conclusion, I am not persuaded that there has been representative error - the error or negligence which led to the delay was on account of Mr Golding not opening his email inbox or taking reasonable practical steps to overcome any lack of competency or confidence in this area.
[46] I now turn to the issue of deterioration in the Applicant’s health following his dismissal.
Deterioration in Applicant’s health following dismissal
[47] It is trite to say that a person’s thoughts and feelings about themselves are important to that individual. Unfortunately, life furnishes events which have a negative impact on our view of ourselves. At work, these negative events can vary from adverse comments about our work performance to being dismissed or made redundant. On each occasion, the individual employee brings with them their own “baggage” such as years of service, seniority, how public the adverse event is, financial circumstances, community circumstances and our own personality. How we respond or cope to these situations will have consequences.
[48] Mr Golding states that he has been employed by the Employer for 19 years and “I was dependent on the employment to build up the financial side of things as I had been badly hit by the financial crisis”. Mr Golding states that there is no work available around Busselton and that his age “works against me”. Such factors, unfortunately, are not exceptional.
[49] The FW Act, in my view, acknowledges that coming to terms with allegedly being dismissed unfairly, requires some time to get “things together”, hence the standard statutory timeframe of 14 days.
[50] Notwithstanding how offended an individual may feel following their dismissal or the impact it has on them financially, emotionally or physically, time does not stand still.
[51] Mr Golding and his daughter, Ms Golding, have set out a list of health symptoms. It is commonly accepted that the earlier you seek help for anxiety or depression, the better the chances of more effective treatment. However, Mr Golding does not provide a statement which states that he sought help from a general practitioner or any other medical practitioner. Different types of depression require different treatments. I have no medical opinion or advice from the Applicant that states, to what extent, if any, the deterioration of Mr Golding’s health impacted upon his ability to file an application within 14 days of being dismissed or any such time after that date. I have simply the Applicant’s self assessment of his medical condition, verified by his daughter, who has also not set out, as observed by the Employer, her qualifications to make such an assessment.
[52] Shortly put, it is not exceptional that employees feel anxious or depressed after having their employment terminated.
[53] Notwithstanding the list of medical symptoms associated with anxiety or depression, I agree with the Employer’s submission that this medical condition did not prevent Mr Golding seeking and obtaining other employment. In finding other employment, Mr Golding made general employment enquiries and had discussions with Centrelink. Finally, Mr Golding assisted his daughter with her furniture store.
● Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal
[54] There is no dispute that Mr Golding was informed both verbally and in writing that his employment ceased with immediate effect on 13 March 2012.
● Paragraph 394(3)(c) - any action by the person to dispute the dismissal
[55] I accept that Mr Golding advised Mr Brand that he disputed his dismissal on or shortly after 13 March 2012. I also accept that Mr Golding had a discussion with Mr Trainer also shortly after 13 March 2012 for the purposes of disputing his dismissal.
[56] However, I also have statements that Mr Golding did not actively enquire into the progress of disputing his dismissal from, on or around 15 March to on or around 30 April 2012.
● Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application
[57] As is all too common in consideration of these matters, for applicants to maintain and there is no prejudice to the employer in extending the time limit for filing the application and employers take the position that there is significant prejudice, I have taken a neutral view to this criteria.
● Paragraph 394(3)(e) - the merits of the application
[58] Having considered the statements of the parties, I consider that only after a hearing will the veracity of the assertions be determined. Consequently, I adopt a neutral consideration of this factor/criteria in the overall context of whether there are exceptional circumstances in which to extend the filing of the application to 2 May 2012.
● Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position
[59] While submissions were made by both parties on this factor/criteria, I also intend to adopt a neutral stance in the overall consideration of whether to extend time to file the application.
CONCLUSION
[60] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:
“...a circumstance which is such as to form an exception, which is out of the ordinary, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.
[61] At a decisive stage in making application to the Tribunal, the certain fact is that Mr Golding did not open his email inbox; that responsibility was his alone. In the totality of the circumstances, I am not satisfied that Mr Golding can transfer that responsibility to Mr Brand or Mr Trainer, particularly given the extensive delay in him contacting Mr Brand to check on the progress of the application.
[62] I am also not satisfied that the alleged deterioration in Mr Golding’s health is a valid or exceptional circumstance for the delay in filing the application within 14 days after this dismissal.
[63] In conclusion, for the reasons which I have set out generally and in particular, I am not satisfied that exceptional circumstances existed which led to the delay in filing Mr Golding’s application. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.
COMMISSIONER
Final written submissions:
Applicant: 31 July 2012.
Employer: 17 July 2012.
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